Documente Academic
Documente Profesional
Documente Cultură
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tent with this policy of neutrality.” We thus find that it was grave
violation of the non-establishment clause for the COMELEC to
utilize the Bible and the Koran to justify the exclusion of Ang
Ladlad.
Same; Same; Same; Through the years, homosexual conduct,
and perhaps homosexuals themselves, have borne the brunt of
societal disapproval.—We are not blind to the fact that, through the
years, homosexual conduct, and perhaps homosexuals themselves,
have borne the brunt of societal disapproval. It is not difficult to
imagine the reasons behind this censure—religious beliefs,
convictions about the preservation of marriage, family, and
procreation, even dislike or distrust of homosexuals themselves and
their perceived lifestyle. Nonetheless, we recall that the Philippines
has not seen fit to criminalize homosexual conduct. Evidently,
therefore, these “generally accepted public morals” have not been
convincingly transplanted into the realm of law.
Election Law; Party-List System; Civil Law; “Nuisance,”
Defined.—Article 694 of the Civil Code defines a nuisance as “any
act, omission, establishment, condition of property, or anything else
which shocks, defies, or disregards decency or morality,” the
remedies for which are a prosecution under the Revised Penal Code
or any local ordinance, a civil action, or abatement without judicial
proceedings.
Same; Same; Evidence; A mere blanket invocation of public
morals cannot replace the institution of civil or criminal
proceedings and a judicial determination of liability or culpability.
—A violation of Article 201 of the Revised Penal Code, requires
proof beyond reasonable doubt to support a criminal conviction. It
hardly needs to be emphasized that mere allegation of violation of
laws is not proof, and a mere blanket invocation of public morals
cannot replace the institution of civil or criminal proceedings and a
judicial determination of liability or culpability.
Same; Same; Moral disapproval, without more, is not a
sufficient governmental interest to justify exclusion of homosexuals
from participation in the party-list system.—We hold that moral
disapproval, without more, is not a sufficient governmental interest
to justify exclusion of homosexuals from participation in the party-
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democratic society, and this freedom applies not only to those that
are favorably received but also to those that offend, shock, or
disturb. Any restriction imposed in this sphere must be
proportionate to the legitimate
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aim pursued. Absent any compelling state interest, it is not for the
COMELEC or this Court to impose its views on the populace.
Otherwise stated, the COMELEC is certainly not free to interfere
with speech for no better reason than promoting an approved
message or discouraging a disfavored one.
Same; Same; Same; Freedom of Association; Only if a political
party incites violence or puts forward policies that are incompatible
with democracy does it fall outside the protection of the freedom of
association guarantee.—A political group should not be hindered
solely because it seeks to publicly debate controversial political
issues in order to find solutions capable of satisfying everyone
concerned. Only if a political party incites violence or puts forward
policies that are incompatible with democracy does it fall outside the
protection of the freedom of association guarantee.
Same; Party-List System; Equal Protection Clause; The
principle of non-discrimination requires that laws of general
application relating to elections be applied equally to all persons,
regardless of sexual orientation.—The principle of non-
discrimination requires that laws of general application relating to
elections be applied equally to all persons, regardless of sexual
orientation. Although sexual orientation is not specifically
enumerated as a status or ratio for discrimination in Article 26 of
the ICCPR, the ICCPR Human Rights Committee has opined that
the reference to “sex” in Article 26 should be construed to include
“sexual orientation.” Additionally, a variety of United Nations bodies
have declared discrimination on the basis of sexual orientation to be
prohibited under various international agreements.
Same; Same; Same; Yogyakarta Principles; Using even the most
liberal of lenses, these Yogyakarta Principles, consisting of a
declaration formulated by various international law professors, are
—at best—de lege ferenda—and do not constitute binding
obligations on the Philippines.—Using even the most liberal of
lenses, these Yogyakarta Principles, consisting of a declaration
formulated by various international law professors, are—at best—de
lege ferenda—and do not constitute binding obligations on the
Philippines. Indeed, so much of contemporary international law is
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Filipino men who have sex with men, as basis for the declaration
that the party espouses and advocates sexual immorality. This
position, how-
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Factual Background
This is a Petition for Certiorari under Rule 65 of the
Rules of Court, with an application for a writ of preliminary
mandatory injunction, filed by Ang Ladlad LGBT Party
(Ang Ladlad) against the Resolutions of the Commission on
Elections (COMELEC) dated November 11, 20092 (the First
Assailed Resolution) and December 16, 20093 (the Second
Assailed Resolution) in SPP No. 09-228 (PL) (collectively,
the Assailed Resolutions). The case has its roots in the
COMELEC’s refusal to accredit Ang Ladlad as a party-list
organization under Republic Act (RA) No. 7941, otherwise
known as the Party-List System Act.4
Ang Ladlad is an organization composed of men and
women who identify themselves as lesbians, gays, bisexuals,
or trans-gendered individuals (LGBTs). Incorporated in
2003, Ang Ladlad first applied for registration with the
COMELEC in 2006. The application for accreditation was
denied on the ground that the organization had no
substantial membership base. On August 17, 2009, Ang
Ladlad again filed a Petition5 for registration with the
COMELEC.
Before the COMELEC, petitioner argued that the LGBT
community is a marginalized and under-represented sector
that is particularly disadvantaged because of their sexual
orientation and gender identity; that LGBTs are victims of
exclusion, discrimination, and violence; that because of
negative societal attitudes, LGBTs are constrained to hide
their sexual orientation; and that Ang Ladlad complied with
the 8-point guidelines enunciated by this Court in Ang
Bagong
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Our Ruling
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20 Supra note 6.
21 It appears that on September 4, 2009, the Second Division directed
the various COMELEC Regional Offices to verify the existence, status,
and capacity of petitioner. In its Comment, respondent submitted copies of
various reports stating that ANG LADLAD LGBT or LADLAD LGBT did
not exist in the following areas: Batangas (October 6, 2009); Romblon
(October 6, 2009); Palawan (October 16, 2009); Sorsogon (September 29,
2009); Cavite, Marinduque, Rizal (October 12, 2009); Basilan,
Maguindanao, Lanao del Sur, Sulu, Tawi Tawi (October 19, 2009);
Biliran, Leyte, Southern Leyte, Samar, Eastern Samar, Northern Samar
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trative Region (October 30, 2009); Agusan del Norte, Agusan del Sur,
Dinagat Islands, Surigao del Norte, Surigao del Sur (October 26, 2009);
Cagayan de Oro, Bukidnon, Camiguin, Misamis Oriental, Lanao del
Norte (October 31, 2009); Laguna (November 2, 2009); Occidental
Mindoro, Oriental Mindoro (November 13, 2009); Quezon (November 24,
2009); Davao City, Davao del Sur, Davao del Norte, Compostela Valley,
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38 The OSG argues that “[w]hile it is true that LGBTs are immutably
males and females, and they are protected by the same Bill of Rights that
applies to all citizens alike, it cannot be denied that as a sector, LGBTs
have their own special interests and concerns.” Rollo, p. 183.
39 Article III, Section 4 of the Constitution provides that “[n]o law shall
be passed abridging the freedom of speech, of expression, or of the press,
or the right of the people peaceably to assemble and petition the
government for redress of grievances.”
40 Supra note 26.
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criminalized oral and anal sex in private between consenting adults when
applied to homosexuals. Seventeen years later the Supreme Court directly
overruled Bowers in Lawrence v. Texas, 539 U.S. 558 (2003), holding that
“Bowers was not correct when it was decided, and it is not correct today.”
In Lawrence, the US Supreme Court has held that the liberty
protected by the Constitution allows homosexual persons the right to
choose to enter into intimate relationships, whether or not said
relationships were entitled to formal or legal recognition.
Our prior cases make two propositions abundantly clear. First, the fact
that the governing majority in a State has traditionally viewed a
particular practice as immoral is not a sufficient reason for upholding a
law prohibiting the practice; neither history nor tradition could save a
law prohibiting miscegenation from constitutional attack. Second,
individual decisions by married persons, concerning the intimacies of
their physical relationship, even when not intended to produce offspring,
are a form of “liberty” protected by the Due Process Clause of the
Fourteenth Amendment. Moreover, this protection extends to intimate
choices by unmarried as well as married persons.
The present case does not involve minors. It does not involve persons
who might be injured or coerced or who are situated in relationships
where consent might not easily be refused. It does not involve public
conduct or prostitution. It does not involve whether the government must
give formal recognition to any relationship that homosexual persons seek
to enter. The case does involve two adults who, with full and mutual
consent from each other, engaged in sexual practices common to a
homosexual lifestyle. The petitioners are entitled to respect for their
private lives. The State cannot demean their existence or control their
destiny by making their private sexual conduct a crime. Their right to
liberty under the Due Process Clause gives them the full right to engage
in their conduct without intervention of the government. “It is a promise
of the Constitution that there is a realm of personal liberty which the
government may not enter.” The Texas statute furthers no legitimate
state
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interest which can justify its intrusion into the personal and private
life of the individual.
In similar fashion, the European Court of Human Rights has ruled
that the avowed state interest in protecting public morals did not justify
interference into private acts between homosexuals. In Norris v. Ireland,
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the European Court held that laws criminalizing same-sex sexual conduct
violated the right to privacy enshrined in the European Convention.
The Government are in effect saying that the Court is precluded from
reviewing Ireland’s observance of its obligation not to exceed what is
necessary in a democratic society when the contested interference with an
Article 8 (Art. 8) right is in the interests of the “protection of morals.” The
Court cannot accept such an interpretation. x x x.
x x x The present case concerns a most intimate aspect of private life.
Accordingly, there must exist particularly serious reasons before
interferences on the part of public authorities can be legitimate x x x.
x x x Although members of the public who regard homosexuality as
immoral may be shocked, offended or disturbed by the commission by
others of private homosexual acts, this cannot on its own warrant the
application of penal sanctions when it is consenting adults alone who are
involved. (Norris v. Ireland (judgment of October 26, 1988, Series A no.
142, pp. 20-21, § 46); Marangos v. Cyprus (application no. 31106/96,
Commission’s report of 3 December 1997, unpublished)).
The United Nations Human Rights Committee came to a similar
conclusion in Toonen v. Australia (Comm. No. 488/1992 U.N. GAOR
Hum. Rts. Comm., 50th Sess., U.N. Doc. CCPR/c/50/D/488/
1992 [1994]), involving a complaint that Tasmanian laws criminalizing
consensual sex between adult males violated the right to privacy under
Article 17 of the International Covenant on Civil and Political Rights. The
Committee held:
x x x it is undisputed that adult consensual sexual activity in private
is covered by the concept of ‘privacy’ x x x any interference with privacy
must be proportional to the end sought and be necessary in the
circumstances of any given case.
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believe these facts about Irish sexuality to be so, or they may object to
unqualified social acceptance of gays and lesbians or have some other
reason for wishing to keep GLIB’s message out of the parade. But
whatever the reason, it boils down to the choice of a speaker not to
propound a particular point of view, and that choice is presumed to lie
beyond the government’s power to control.”
So, too, in Boy Scouts of America v. Dale (530 U.S. 640 [2000]), the US
Supreme Court held that the Boy Scouts of America could not be
compelled to accept a homosexual as a scoutmaster, because “the Boy
Scouts believe that homosexual conduct is inconsistent with the values it
seeks to instill in its youth members; it will not “promote homosexual
conduct as a legitimate form of behavior.”
When an expressive organization is compelled to associate with a
person whose views the group does not accept, the organization’s message
is undermined; the organization is understood to embrace, or at the very
least tolerate, the views of the persons linked with them. The
scoutmaster’s presence “would, at the very least, force the organization to
send a message, both to the youth members and the world, that the Boy
Scouts accepts homosexual conduct as a legitimate form of behavior.”
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Article 26
All persons are equal before the law and are entitled without any
discrimination to the equal protection of the law. In this respect, the
law shall prohibit any discrimination and guarantee to all persons
equal and effective protection against discrimination on any ground
such as race, colour, sex, language, religion, political or other
opinion, national or social origin, property, birth or other status.
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The Committee on the Rights of the Child (CRC) has also dealt with
the issue in a General Comment. In its General Comment No. 4 of 2003,
it stated that, “State parties have the obligation to ensure that all human
beings below 18 enjoy all the rights set forth in the Convention [on the
Rights of the Child] without discrimination (Article 2), including with
regard to ‘‘race, colour, sex, language, religion, political or other opinion,
national, ethnic or social origin, property, disability, birth or other
status.” These grounds also cover [inter alia] sexual orientation.”
(Committee on the Rights of the Child, General Comment No. 4:
Adolescent health and development in the context of the Convention on
the Rights of the Child, July 1, 2003, CRC/GC/2003/4).
The Committee on the Elimination of Discrimination Against Women
(CEDAW), has, on a number of occasions, criticized States for
discrimination on the basis of sexual orientation. For example, it
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Article 21.
(1) Everyone has the right to take part in the government of
his country, directly or through freely chosen representatives.
Article 25
Every citizen shall have the right and the opportunity, without
any of the distinctions mentioned in article 2 and without
unreasonable restrictions:
(a) To take part in the conduct of public affairs, directly or
through freely chosen representatives;
(b) To vote and to be elected at genuine periodic elections
which shall be by universal and equal suffrage and shall be held by
secret ballot, guaranteeing the free expression of the will of the
electors;
(c) To have access, on general terms of equality, to public
service in his country.
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right to vote and to be elected and the right to have access to public
service. Whatever form of constitution or government is in force, the
Covenant requires States to adopt such legislative and other
measures as may be necessary to ensure that citizens have an
effective
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of the categories of international law set forth in Article 38, Chapter III of
the 1946 Statute of the International Court of Justice. It is, however, an
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1 Section 5, Article III of the 1987 Constitution states: “No law shall be
made respecting an establishment of religion, or prohibiting the free
exercise thereof. The free exercise and enjoyment of religious profession
and worship, without discrimination or preference, shall forever be
allowed. No religious test shall be required for the exercise of civil or
political rights.”
2 The November 11, 2009 Resolution of the COMELEC cited the
following passage from the Bible to support its holding: “For this cause
God gave them up into vile affections: for even their women did change
the natural use into that which is against nature: And likewise also the
men, leaving the natural use of the woman, burned in their lust one
toward another; men with men working that which is unseemly, and
receiving in themselves that recompense of their error which was meet.”
(Romans 1:26-27)
3 The November 11, 2009 Resolution of the COMELEC cited the
following passages from the Koran to support its holding:
� “For ye practice your lusts on men in preference to women: ye are
indeed a people transgressing beyond bounds.” (7:81)
� “And we rained down on them a shower (of brimstone): Then see
what was the end of those who indulged in sin and crime!” (7.84)
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6 Id.
7 Section 5, Article III of the 1987 Constitution.
8 Lemon v. Kurtzman, 403 U.S. 602 (1971).
9 COMELEC’s Comment, p. 13.
10 Id.
11 See Lawrence v. Texas, 539 U.S. 558, 123 S.Ct. 2472.
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12 Id.
13 Planned Parenthood of Southeastern Pa. v. Casey, 505 U.S. 833,
850, 112 S.Ct. 2791, 120 L.Ed.2d 674 (1992).
14 Ang Ladlad defined “sexual orientation” as a person’s capacity for
profound emotional, affectional and sexual attraction to, and intimate and
sexual relations with, individuals of a different gender, of the same
gender, or more than one gender.” (italics supplied)
15 Paragraph 24 of Ang Ladlad’s Petition for Registration stated, in
relevant part: “In 2007, Men Having Sex with Men or MSMs in the
Philippines were estimated at 670,000.”
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“Only the most willful blindness could obscure the fact that
sexual intimacy is “a sensitive, key relationship of human existence,
central to family life, community welfare, and the development of
human personality[.]”19 The fact that individuals define themselves
in a significant way through their intimate sexual relationships
with others suggests, in a Nation as diverse as ours, that there may
be many “right” ways of conducting those relationships, and that
much of the richness of a relationship will come from the freedom an
individual has to choose the form and nature of these intensely
personal bonds.20
In a variety of circumstances we have recognized that a
necessary corollary of giving individuals freedom to choose how to
conduct their lives is acceptance of the fact that different
individuals will make different choices. For example, in holding
that the clearly important state interest in public education should
give way to a competing claim by the Amish to the effect that
extended formal schooling threatened their way of life, the Court
declared: “There can be no assumption that today’s majority is
‘right’ and the Amish and
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16 Roberts v. United States Jaycees, 468 U.S. 609, 104 S.Ct. 3244, as cited in
the Dissenting Opinion of Mr. Justice Blackmun in Bowers v. Hardwick, infra.
17 478 U.S. 186, 106 S.Ct. 2841.
18 Supra note 11.
19 Paris Adult Theatre I v. Slaton, 413 U.S. 49, 63, 93 S.Ct. 2628, 2638, 37
L.Ed.2d 446 (1973); See also Carey v. Population Services International, 431 U.S.
678, 685, 97 S.Ct. 2010, 2016, 52 L.Ed.2d 675 (1977).
20 See Karst, The Freedom of Intimate Association, 89 Yale L.J. 624, 637
(1980); cf. Eisenstadt v. Baird, 405 U.S. 438, 453, 92 S.Ct. 1029, 1038, 31
L.Ed.2d 349 (1972); Roe v. Wade, 410 U.S., at 153, 93 S.Ct., at 726.
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others like them are ‘wrong.’ A way of life that is odd or even erratic
but interferes with no rights or interests of others is not to be
condemned because it is different.”21 The Court claims that its
decision today merely refuses to recognize a fundamental right to
engage in homosexual sodomy; what the Court really has refused to
recognize is the fundamental interest all individuals have in
controlling the nature of their intimate associations with others.”
(italics supplied)
“To say that the issue in Bowers was simply the right to engage
in certain sexual conduct demeans the claim the individual put
forward, just as it would demean a married couple were it to be said
marriage is simply about the right to have sexual intercourse. The
laws involved in Bowers and here are, to be sure, statutes that
purport to do no more than prohibit a particular sexual act. Their
penalties and purposes, though, have more far-reaching
consequences, touching upon the most private human conduct,
sexual behavior, and in the most private of places, the home. The
statutes do seek to
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“While R.A. No. 7653 started as a valid measure well within the
legislature’s power, we hold that the enactment of subsequent laws
exempting all rank-and-file employees of other GFIs leeched all
validity out of the challenged proviso.
xxxx
According to petitioner, the last proviso of Section 15(c), Article II
of R.A. No. 7653 is also violative of the equal protection clause
because after it was enacted, the charters of the GSIS, LBP, DBP
and SSS were also amended, but the personnel of the latter GFIs
were all exempted from the coverage of the SSL. Thus, within the
class of rank-and-file personnel of GFIs, the BSP rank-and-file are
also discriminated upon.
Indeed, we take judicial notice that after the new BSP charter
was enacted in 1993, Congress also undertook the amendment of
the charters of the GSIS, LBP, DBP and SSS, and three other GFIs,
from 1995 to 2004, viz.:
xxxx
It is noteworthy, as petitioner points out, that the subsequent
charters of the seven other GFIs share this common proviso: a
blanket exemption of all their employees from the coverage of the
SSL, expressly or impliedly...
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The abovementioned subsequent enactments, however,
constitute significant changes in circumstance that considerably
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In the case at bar, it is precisely the fact that as regards the
exemption from the SSL, there are no characteristics peculiar only
to the seven GFIs or their rank-and-file so as to justify the
exemption which BSP rank-and-file employees were denied (not to
mention the anomaly of the SEC getting one). The distinction made
by the law is not only superficial, but also arbitrary. It is not based
on substantial distinctions that make real differences between the
BSP rank-and-file and the seven other GFIs.
xxxx
The disparity of treatment between BSP rank-and-file and the
rank-and-file of the other seven GFIs definitely bears the
unmistakable badge of invidious discrimination—no one can, with
candor and fairness, deny the discriminatory character of the
subsequent blanket and total exemption of the seven other GFIs
from the SSL when such was withheld from the BSP. Alikes are
being treated as unalikes without any rational basis.
xxxx
Thus, the two-tier analysis made in the case at bar of the
challenged provision, and its conclusion of unconstitutionality by
subsequent operation, are in cadence and in consonance with the
progressive trend of other jurisdictions and in international law.
There should be no hesitation in using the equal protection clause
as a major cutting edge to eliminate every conceivable irrational
discrimination in our society. Indeed, the social justice imperatives
in the Constitution, coupled with the special status and protection
afforded to labor, compel this approach.
Apropos the special protection afforded to labor under our
Constitution and international law, we held in International School
Alliance of Educators v. Quisumbing:
That public policy abhors inequality and discrimination is
beyond contention. Our Constitution and laws reflect the
policy against these evils. The Constitution in the Article on
Social Justice and Human Rights exhorts Congress to “give
highest priority to the enactment of measures that protect and
enhance the right of all people to human dignity, reduce
social,
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entice them to stay. Considering that majority, if not all, the rank-
and-file employees consist of people whose status and rank in life
are less and limited, especially in terms of job marketability, it is
they—and not the officers—who have the real economic and
financial need for the adjustment. This is in accord with the policy
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of the Constitution “to free the people from poverty, provide adequate
social services, extend to them a decent standard of living, and
improve the quality of life for all.” Any act of Congress that runs
counter to this constitutional desideratum deserves strict scrutiny by
this Court before it can pass muster.” (citations omitted and italics
supplied)
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contribute to society;43
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litical process.” The experience of our Nation has shown that prejudice
may manifest itself in the treatment of some groups. Our response to that
experience is reflected in the Equal Protection Clause of the Fourteenth
Amendment. Legislation imposing special disabilities upon groups
disfavored by virtue of circumstances beyond their control suggests the
kind of “class or caste” treatment that the Fourteenth Amendment was
designed to abolish.
42 See United States v. Virginia, 518 U.S. at 531-32, 116 S.Ct. at
2274-75, 135 L.Ed.2d at 750 (observing ‘long and unfortunate history of
sex discrimination” (quoting Frontiero v. Richardson, 411 U.S. 677, 684,
93 S.Ct. 1764, 1769, 36 L.Ed.2d 583, 590 (1973) (Brennan, J., plurality
opinion))); Lyng v. Castillo, 477 U.S. 635, 638, 106 S.Ct. 2727, 2729, 91
L.Ed.2d 527, 533 (1986) (noting subject class had “not been subjected to
discrimination”); City of Cleburne v. Cleburne Living Ctr., 473 U.S. 432
at 443, 105 S.Ct. at 3256, 87 L.Ed.2d at 332 (mentally retarded not
victims of “continuing antipathy or prejudice”); Mass. Bd. of Ret. v.
Murgia, 427 U.S. 307, 313, 96 S.Ct. 2562, 2567, 49 L.Ed.2d 520, 525
(1976) (considering “history of purposeful unequal treatment” (quoting
San Antonio Indep. Sch. Dist. v. Rodriguez, 411 U.S. 1, 28, 93 S.Ct.
1278, 1294, 36 L.Ed.2d 16, 40 [1973]).
43 See Cleburne Living Ctr., 473 U.S. at 440, 105 S.Ct. at 3254, 87
L.Ed.2d at 320 (certain classifications merely “reflect prejudice and
antipathy”); Miss. Univ. for Women v. Hogan, 458 U.S. 718, 725, 102
S.Ct. 3331, 3336, 73 L.Ed.2d 1090, 1098 (1982) (“Care must be taken in
ascertaining whether the statutory objective itself reflects archaic and
stereotypic notions.”); Murgia, 427 U.S. at 313, 96 S.Ct. at 2566, 49
L.Ed.2d at 525 (considering whether aged have “been subjected to unique
disabilities on the basis of stereotyped characteristics not truly indicative
of their abilities”); Frontiero, 411 U.S. at 686, 93 S.Ct. at 1770, 36
L.Ed.2d at 591 (Brennan, J., plurality opinion) (“[T]he sex characteristic
frequently bears no relation to ability to perform or contribute to
society.”).
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44 Lyng, 477 U.S. at 638, 106 S.Ct. at 2729, 91 L.Ed.2d at 533 (close
relatives “do not exhibit obvious, immutable, or distinguishing
characteristics that define them as a discrete group”); Cleburne Living
Ctr., 473 U.S. at 442, 105 S.Ct. at 3255-56, 87 L.Ed.2d at 322 (mentally
retarded people are different from other classes of people, “immutably so,
in relevant respects”); Plyler, 457 U.S. at 220, 102 S.Ct. at 2396, 72
L.Ed.2d at 801 (children of illegal aliens, unlike their parents, have “legal
characteristic[s] over which children can have little control”); Mathews v.
Lucas, 427 U.S. 495, 505, 96 S.Ct. 2755, 2762, 49 L.Ed.2d 651, 660 (1976)
(status of illegitimacy “is, like race or national origin, a characteristic
determined by causes not within the control of the illegitimate
individual”); Frontiero, 411 U.S. at 686, 93 S.Ct. at 1770, 36 L.Ed.2d at
591 (Brennan, J., plurality opinion) (“[S]ex, like race and national origin,
is an immutable characteristic determined solely by the accident of
birth....”).
45 Lyng, 477 U.S. at 638, 106 S.Ct. at 2729, 91 L.Ed.2d at 533 (close
relatives of primary household are “not a minority or politically
powerless”); Cleburne Living Ctr., 473 U.S. at 445, 105 S.Ct. at 3257, 87
L.Ed.2d at 324 (refusing to find “that the mentally retarded are politically
powerless”); San Antonio Indep. Sch. Dist., 411 U.S. at 28, 93 S.Ct. at
1294, 36 L.Ed.2d at 40 (considering whether minority and poor school
children were “relegated to such a position of political powerlessness as to
command extraordinary protection from the majoritarian political
process”).
46 Varnum v. Brien, supra note 41; Kerrigan v. Commissioner of
Public Health, 289 Conn. 135, 957 A.2d 407 (2008).
47 Varnum v. Brien, id., citing, among others, Palmore v. Sidoti, 466
U.S. 429, 433-34, 104 S.Ct. 1879, 1882-83, 80 L.Ed.2d 421, 426 (1984)
(foregoing analysis of political power); Nyquist v. Mauclet, 432
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DISSENTING OPINION
CORONA, J.:
Stripped of the complicated and contentious issues of
morality and religion, I believe the basic issue here is
simple: does petitioner Ang Ladlad LGBT Party qualify,
under the terms of the Constitution and RA 7941, as a
marginalized and underrepresented sector in the party-list
system?
The relevant facts are likewise relatively uncomplicated.
Petitioner seeks accreditation by the respondent
Commission on Elections as a political organization of a
marginalized and underrepresented sector under the party-
list system. Finding that petitioner is not a marginalized
sector under RA 7941, the Commission on Elections denied
its petition.
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1 Id.
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“SEC. 5. x x x
(2) The party-list representatives shall constitute twenty per
centum of the total number of Representatives including those
under the party-list. For three consecutive terms after the
ratification of this Constitution, one-half of the seats allocated to
party-list representatives shall be filled, as provided by law, by
selection or election from the labor, peasant, urban poor,
indigenous cultural communities, women, youth, and such
other sectors as may be provided by law, except the
religious sector.” (emphasis supplied)
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1 Republic Act.
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111
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3 The Chief Justice’s stance is the official stance of the Court on the matter
because majority of the members of the Court sided with him on the issue of
disallowing major political parties from participating in the party-list
elections, directly or indirectly.
4 G.R. No. 179271, 21 April 2009, 586 SCRA 210, 258-259.
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20 Supra note 2.
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21 Miranda v. Abaya, 370 Phil. 642, 658; 311 SCRA 617, 626 (1999).
22 The notion of family resemblances (familienähnlichkeit) was
introduced by the leading analytic philosopher, Ludwig Wittgenstein, in
his book Philosophical Investigations. As used in this opinion, however,
family resemblances specifically refer to the DNA, the basic component
unit, that identifies a sector as a member of the family of marginalized
and underrepresented sectors enumerated in Section 5(2), Article VI of the
Constitution and Section 5 of RA 7941.
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“We do not suggest that public opinion, even at its most liberal,
reflect a clear cut strong consensus favorable to gay rights
claims….”26
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26Id.
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SEPARATE OPINION
ABAD, J.:
I have to concur only in the result set forth in the well-
written ponencia of Justice Mariano C. Del Castillo because
I arrived at the same conclusion following a different path.
I also felt that the Court needs, in resolving the issues in
this case, to say more about what the Constitution and
Republic Act (R.A.) 7941 intends in the case of the party-list
system to abate the aggravations and confusion caused by
the alarming overnight proliferation of sectoral parties.
The underlying policy of R.A. 7941 or The Party-List
System Act is to give the marginalized and
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3 “In the end, the role of the Comelec is to see to it that only those
Filipinos who are “marginalized and underrepresented” become members
of Congress under the party-list system, Filipino style.” Ang Bagong
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5 http://www.aglbical.org/2STATS.htm.
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